In R (Drexler) v Leicestershire County Council (2019) EWHC 1934 (Admin) Swift J restated the following principles:-
(1) The extent of the ambit of an ECHR right is a matter of assessment: paragraph 24;
(2) For an Article 14 discrimination claim to arise there is no requirement for the substantive right to be infringed: ibid;
The first instance decision in Trail Riders Fellowship v Hampshire County Council was noted in this Bulletin on 11 December 2018. An appeal has now been dismissed: (2019) EWCA Civ 1275. Sir Ross Cranston’s statement of the law was approved, save for the last part of proposition (iv). Longmore LJ said that there does have to be actual evidence that the balancing exercise required by Section 122 has been, in substance, conducted. It cannot be merely a matter of inference from the status of the decision-maker.
In Smart v Director of Personnel Administration (2019) UKPC 35 one issue was whether a decision challenged by judicial review was tainted by the existence of undisclosed documents. There seems to have been “an unfortunate lack of transparency” about an appointment process. It also seemed unfortunate that the response to a Freedom of Information request was delayed. There was a lack of candour” in not disclosing correspondence. Lord Carnwath referred, at paragraph 32, to the so-called “presumption of regularity” on the one hand and on the other hand the “well established duty” on a public authority to respond to a judicial review application with “all the cards face upwards on the table”. The Privy Council, at paragraph 34, endorsed as the correct approach the following statement (emphasis added):-
“It is in this context of cooperation, where a court has granted leave to pursue judicial review and where the full and candid disclosure of the claimant’s evidence as well as the full, frank and uninhibited explanation – with all primary documents relevant to the challenge (subject only to lawful exemptions) of the public authority are before the court, that the process of evaluation contemplated by judicial review is to be undertaken. … the presumption of regularity ought not to operate as a shield behind which a public authority can hide by refusing to give evidence on the basis that it is for a claimant to prove his case. This is an erroneous and misplaced view of how the presumption of regularity ought to operate in public law matters. Indeed, a presumption of bona fides ought to willingly lead to full disclosure of all relevant information at the earliest opportunity – including in response to pre-action enquiries.”
In R (LF) v Buckinghamshire County Council (2019) EWHC 1817 (Admin) a judicial review challenge failed to a decision by the Council, by its Cabinet, to close 19, and retain 16, of its Children’s Centres, whilst ensuring the continuing use of the closed Centres for early years and community benefit. Andrews J was satisfied that the Council had carried out a fair Consultation before Cabinet made its decision, that it took the responses properly into account, and that it complied with all its relevant statutory duties.
There was an obligation on the Council under Section 5D of the Childcare Act 2006 to “secure that such consultation as they think appropriate” was carried out before any change was made in the services to be provided through a Children’s Centre or before the closure of any such Centre. Andrews J said (paragraph 34) that gave the Council “a wide discretion as to what the consultation should comprise”, subject only to the requirements of statutory Guidance. Read more »
Section 61N of the Town and Country Planning Act 1990 is a bespoke and complete scheme for legal challenges to specified decisions and actions within the Neighbourhood Plan process. The Section is self-contained and comprehensive. It leaves no gaps. It provides for proceedings to be pursued before a Neighbourhood Plan is made. The six weeks’ time limit for challenging Neighbourhood Development Orders cannot be extended. Claims must be brought at the particular stage at which a grievance arises. So held in R (Oyston Estates Ltd) v Fylde Borough Council (2019) EWCA Civ 1152
The European Court Judgment in Case C-624/17, Tronex BV, concerns the concepts of “waste” and “shipment of waste”. The Court said:-
“16 Regarding the concept of ‘waste’, it should be borne in mind that Article 3(1) of Directive 2008/98 defines it as any substance or object which the holder discards or intends or is required to discard…
17 In accordance with the Court’s settled case-law, the classification of a substance or object as waste is to be inferred primarily from the holder’s actions and the meaning of the term ‘discard’… Read more »
The decision in R (Z) v Hackney LBC, noted in this Bulletin on 6 February 2019, has been upheld by the Court of Appeal. The Court held that the allocation policy of the Agudas Israel Housing Association (“AIHA”) was permitted by Section 193(1) and Section 193(2)(b) of the Equality Act 2010: paragraph 62. A proportionality assessment was not required.
In Williams v Caerphilly County Borough Council (2019) EWHC 1618 (Admin) the Claimant challenged two decisions taken by the Council, which operates executive arrangements: a Cabinet decision to adopt a Sports and Active Recreation Strategy for 2019-2020 (“the Sports Strategy” and “the Strategy Decision”); and a further and later Cabinet decision to close a Leisure Centre (“the Closure Decision”).
As regards the Strategy Decision, the first ground of challenge was that the Strategy Decision was unlawful because it was taken by Cabinet, when it should have been taken by Full Council, pursuant to the Local Authorities (Executive Arrangements) (Functions and Responsibilities) (Wales) Regulations 2007 (“the 2007 Regulations”). Read more »
In Samuels v Birmingham City Council (2019) UKSC 28 the Supreme Court quashed the Council’s decision that Ms Samuels was intentionally homeless, on the ground that her accommodation was affordable and reasonable for her to continue to occupy, and that its loss was the result of her deliberate act in failing to pay the rent. The central issue was whether the Council adopted the correct approach in determining that the accommodation was “affordable” for the purposes of Part VII of the Housing Act 1996, Article 2 of the Homelessness (Suitability of Accommodation) Order 1996, and the Homelessness Code of Guidance for Local Authorities. The Council was required to take into account all Ms Samuels’ sources of income, including all social security benefits, and to consider all her reasonable living expenses. The question ought to have been what her reasonable living expenses, other than rent, were. This should have been determined having regard to her needs and those of her children.